Tom Taulli

1099-NEC: What Companies Need To Know

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For businesses across America, it’s that time again to think about the necessary IRS paperwork. But there have also been some changes, as should be no surprise.

One is regarding the 1099-MISC form. Traditionally this has been used to report contractor income. But now businesses will have to use the 1099-NEC form (it is short for “non-employee compensation”). This is actually something that was used about 30 years ago. But now the IRS wants to revive the form and the main reason is that the agency wants to make it easier to deal with the deadlines. Note that a 1099-MISC form also includes income for rents, prizes/awards, medical payments and so on. 

The good news is that if you are familiar with the requirements for the 1099-MISC form, then the new one will not be much different. So let’s take a look.

First of all, here are the main requirements for filing a 1099-NEC form:

  • The payment–which was made to a contractor–must be at least $600 for the tax year. The amount is reported on Box 1 of the 1099-NEC form.
  • The payment was made for services for your business. Thus, it cannot be for personal activities, such as having someone repair your home. But the payments can be made to government agencies and nonprofits. 
  • They payment must be for an individual, partnership, estate or corporation. Although, there is an exception–that is, if the entity is a C corporation or S corporation. 

Note that there are some other times when you need to file a 1099-NEC form, which are not as common. They include the following:

  • A payment of at least $10 for royalties.
  • Withholding of any federal income taxes for backup withholding for employees.

If you are required to file a 1099-NEC form, then the deadline is January 31st. You will send Copy A to the IRS and Copy B to the contractor—and these can be filed by mail or e-filed. There also may be an extension granted for the deadline if there is a qualified hardship. 

Besides the filing of the 1099-NEC form, you will also need to have the payee fill out and sign a Form W-9. This is to get the correct Tax Payer Identification Number (TIN), like a Social Security Number. 

Now one of the toughest parts about determining whether to file a 1099-NEC form is whether the payee is a contractor or not. The requirements can be ambiguous. Just look at the litigation that companies like Uber and Lyft have waged on this matter!

As for the IRS, it does provide some guidance. The general definition for a contractor is a person that has the “right to control or direct only the result of the work and not what will be done and how it will be done.” The IRS does give some examples, such as the following:

  • Commissions to sales people that have repayment terms but have not been repaid during the tax year. 
  • Fees for professional services like legal and financial advice. 
  • Fees among professionals, say for referrals. 

If a contractor is disqualified by the IRS, the consequences can be severe. You may be subject to harsh fines, penalties and back taxes. In other words, if you have any concerns or questions, its probably a good idea to seek the advice from an attorney or CPA.

When To Form An LLC (Limited Liability Company)

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Forming a corporation is a big step in a company’s journey. But it’s also a confusing one. After all, there are a variety of options available, such as an LLC (Limited Liability Company), S-Corporation and C-Corporation.

Yet for early-stage companies, the LLC is generally the most popular. Why is this so?

Well, let’s take a look:

Less Paperwork and Procedures: Hey, running a business is time-consuming. If anything, a key reason for why the LLC was formed – which happened during the 1970s – was to make the process less onerous. Keep in mind that for most states you just need to pay a fee, file the articles of organization (which is fairly easy to do and often is done online) and perhaps make annual filings (which are also fairly straightforward).

Now this does not mean you should run your LLC with minimal effort! It’s advisable to put together an operating agreement (especially if you have partners). This sets forth the governance of the LLC, such as with voting, allocation of profits/losses, compensation, authorizations and so on. An operating agreement can be an effective way to allow for stronger management.

Something else:  It’s a good idea to, at a minimum, have an attorney review your documents.

Taxes. By default, an LLC is treated as a “pass through entity” — that is, the profits and losses go directly to the owners. For a single-member LLC, this means that preparing a tax return is usually easy. You’ll need to file a Schedule SE for self-employment taxes and also a Schedule C to detail the revenues and deductions.

As for a multi-member LLC, things get more complicated. For example, you will need to file a partnership return (called a 1065) and K-1’s for each member (this shows the allocations of profits, losses and credits).

Regardless, the pass-through feature means that you may be able to deduct losses against other income, which can be a nice benefit. Oh, and if this is not as important, the LLC allows you to elect to be taxed as a C-Corporation or an S-Corporation. In other words, it’s a good idea to compare the different methods to see which provides the maximum tax benefits.

Limited Liability: This is perhaps the biggest attraction of an LLC (keep in mind that you get limited liability protection from a C-Corp and S-Corp too). This means that you can generally protect your personal assets if there is litigation or bankruptcy of your company.

Granted, this is not absolute. If you are grossly negligent, engage in a fraud or commit a crime, then you will likely not get limited liability protection. This is also likely to be the case with signing a lease or getting a loan from a bank (alas, you will probably have to sign a personal guarantee).

But for the most part, limited liability protection is very powerful. Let’s face it, early-stage businesses are very risky.

Estate Planning: An LLC can be placed in a living trust, which can provide for tax benefits and better estate planning. But of course, this is a highly complicated topic and really needs the help of a qualified attorney.

The Drawbacks? No entity is perfect. And yes, the LLC is not ideal for all businesses. Actually, one of the biggest disadvantages is that it is not particularly good for raising money, especially from VCs. It is tough to structure protections in stock (such as priorities with dividends and liquidations), the governnenance tends to be too flexible (there is no board of directors) and even the pass-through tax feature can be a problem (the reason is that VCs may have tax-exempt investors). So if you intend on raising substantial amounts of money, you probably should instead look at the C-Corp. For the most part, the LLC will likely just make things too complicated and may even scare away potential investors.

And Online Legal Services: Yes, there are various companies, like CorpNet, that can streamline the process of making the necessary filings, maintaining ongoing reports and providing for services such as for a registered agent — at affordable rates.

Do You Need To Panic About Estimated Payments?

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For new business owners, the tax rules can be confusing and even overwhelming. Just look at estimated payments.

What’s the point of this?

Well, the US has a pay-as-you-go tax system; in other words, the IRS collects taxes as you earn income. But for those who are employees, the employer will handle this by withholding amounts from your paycheck for federal and state taxes, as well as payments for Social Security and Medicare.

Yet things may be different for someone who is self-employed. If he or she does not setup payroll, then the IRS will want to see estimated payments for the taxes owed.

Now there are some exceptions. For example, you do not owe estimated payments if:

  • You paid zero taxes last year (say because you were unemployed or your business lost money)
  • You will owe less than $1,000 for the tax year, after accounting for refundable credits and withholding and…
  • The taxes paid will be at least 90% of the tax you owe for the tax year or…
  • The taxes paid this year will be at least 100% of the tax on last year’s return (it is 110% if your adjusted gross income is over $150,000 or $75,000 if you file a separate return)

No doubt, there are a lot of moving parts.  But things can be boiled down to this:  The IRS essentially wants to make sure that — if you owe $1,000 or more — you should pay at least of all of last year’s amount or 90% of this year’s.

But let’s say you don’t do this?  For the most part, the consequences are not severe. You will owe an underpayment penalty, which is an interest charge (and no, you will not be thrown into jail!)

Despite this, it is still a good idea to make estimated payments. Besides saving a few bucks, you will also avoid something that many business owners fall victim too: not having enough money to pay taxes when April 15th rolls around.

So to make an estimated payment, you will need to fill out a simple voucher, called Form 1040-ES, or you can call the IRS to make the transaction. The due dates are on April 15, June 15, September 15 and January 15 (yes, the next deadline is on Wednesday).

The good news is that it is not too tough to come up with the amount for your estimated payments. Of course, a tax app like Intuit ’s TurboTax makes the process easy. Or, you can use your last year’s return to come up with the number (for more on this, you can check out here for my simple approach).

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